McLain v. City of New London/Board of Education

CASE NO. 5512 CRB-2-09-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 9, 2010

BRADLEY MCLAIN

CLAIMANT-APPELLANT

v.

CITY OF NEW LONDON/BOARD OF EDUCATION

EMPLOYER

and

CONNECTICUT INTERLOCAL RISK MANAGEMENT

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant appeared without legal representation. The claimant’s wife, Norma Bremmer-McLain, acted as his representative, 302 Boston Post Road, Unit 5, Waterford, CT 06320.

The respondents were represented by Jennifer A. Hock, Esq., McGann, Bartlett & Brown, LLC, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.

This Petition for Review from the November 24, 2009 Finding & Award/Finding & Dismissal of the Commissioner acting for the Eighth District was heard April 30, 2010 before a Compensation Review Board panel consisting of Commissioners Nancy E. Salerno, Jack R. Goldberg and Peter C. Mlynarczyk.

OPINION

NANCY E. SALERNO, COMMISSIONER. The claimant appeals from the November 24, 2009 Finding and Award/Finding and Dismissal [hereafter Finding and Award] of the Commissioner acting for the Eighth District. In that Finding and Award the trial commissioner considered a number of claims raised by the claimant. Among the various claims, the trial commissioner concluded the following: the claimant suffered a compensable injury to his head/cervical/trapezoid strain on December 23, 1988; the claimant suffered a compensable back injury on November 1, 1994 and reached maximum medical improvement as of October 29, 1997; the claimant suffered a compensable injury to his lumbar back and leg on March 20, 2001 and reached maximum medical improvement as of February 9, 2005; the claimant suffered a compensable injury to his lumbar back on August 15, 2007 and was at maximum medical improvement as of May 8, 2008.

The pertinent facts in this matter are as follows. The claimant worked for the New London Board of Education as a maintenance person. As noted above the claimant claims a number of injuries some of which were accepted or found to be causally related to his employment. The remainder of the claims alleged were dismissed by the trial commissioner.1

Ultimately, the trial commissioner concluded that the claimant was entitled to pharmacological treatment for his head injury but not for shoulder surgery. The trial commissioner also concluded that the claimant was not totally disabled as a result of the injuries which the trial commissioner found compensable or were accepted by the respondent. Nor was the claimant entitled to any additional temporary partial or permanent partial benefits alleged to relate to the various injuries. Further, the trial commissioner ordered the respondent to provide information as to the claimant’s average weekly wage for the injury sustained December 23, 1988 and ordered the claimant to provide a valid Form 1A.2 The trial commissioner ordered that the claimant’s group health insurer, Blue Cross/Blue Shield, be reimbursed and denied the claimant’s Motion To Open all Voluntary Agreements.3

The pertinent facts in this matter are as follows. The claimant worked for the New London Board of Education as a maintenance person. As noted above the claimant claims a number of injuries some of which were accepted or found to be causally related to his employment. The remainder of the claims alleged were dismissed by the trial commissioner on the basis that the claimant failed to sustain his burden of proof.

During the course of the proceedings before the trial commissioner the claimant elected to appear without legal representation. Representation of the claimant was a matter that was undertaken in concert with Mrs. Norma Bremmer McLain, claimant’s spouse. At each session of the formal hearing the trial commissioner informed the claimant that he had the right to legal representation. The claimant elected to proceed without formal legal representation and in fact, claimant’s spouse conducted direct examination and cross examination at various formal hearing sessions.

Following the issuance of the trial commissioner’s November 24, 2009 Finding and Award, the claimant filed an appeal. As with any claimant who is unrepresented before this body, we accord the claimant a certain amount of leeway in terms of compliance with the procedural demands of litigation. But as we have noted in a number of prior opinions, the leeway accorded to a pro se claimant is not unfettered. Sellers v. Sellers Garage, Inc., 110 Conn. App. 110, 117-18 (2008).

In the prosecution of this appeal the claimant filed a number of documents.4 Some of the documents filed appear to be duplications of documents submitted to the trial commissioner. In the claimant’s appellate filings before this board we are asked to pay particular attention to certain exhibits. The claimed exhibits were; (1) Motion To Remove Form 36-January 13, 2009 and May 20, 2009 (Claimant’s Exhibit ZZZ, June 11, 2009), (2) Motion To Contest Form 43 (Claimant’s Exhibit A-4,June 11, 2009), (3) Motion To Contest Respondent’s Exhibit 9 (Claimant’s Exhibit B-4, June 11, 2009), (4) Motion to Address Voluntary Agreement (Claimant’s Exhibit C-4, June 11, 2009), and (5) Motion to Order (Claimant’s Exhibit D-4, June 11, 2009). The claimant contends, amongst other issues, that the trial commissioner erred in failing to specifically rule on each of these motions. The remaining issues presented for review may be summarized as follows; (1) whether the trial commissioner erred in concluding as he did due to his own inherent unfairness and bias toward the claimant and his spouse, (2) whether the trial commissioner’s findings and conclusion were legally inappropriate.

We begin our review with the procedural issue raised by the claimant that the trial commissioner erred in failing to rule on various motions that were admitted into the record at the June 11, 2009 Formal Hearing.5 We disagree. In the November 24, 2009 Finding and Award the trial commissioner references the various motions of claimant. When one reads the trier’s conclusion his denial of the various motions is readily inferred. See Sullivan v. Northwind Energy Insulators, Inc., 2 Conn. Workers’ Comp. Rev. Op. 12, 146 CRD-4-82 (May 16, 1983), no error, 2 Conn. App. 689 (1984), cert. denied, 195 Conn. 801 (1985).

As to the issue that the trial commissioner was unfair to the claimant and his spouse and harbored some deep-seated bias toward them the claimant has put nothing forward to advance that argument other than the bald assertions included in various documents. Contrary to the claimant’s contentions neither the claimant nor the claimant’s spouse has offered any proof other than their own beliefs. Furthermore our review of the record and the formal hearing transcripts provides us with a far different impression. Our review demonstrates a commissioner who was protective of the due process rights of both parties and in particular, those of the unrepresented claimant. In the proceedings below we think the trial commissioner demonstrated an abundance of patience with the unrepresented claimant and his spouse. The claimant contends that the trial commissioner’s reminder to the claimant of his right to secure legal counsel was an indication of some sort of bias. We disagree. We think the commissioner’s reminder to the claimant of his right to legal representation is evidence of the trier’s concern for the due process rights of the claimant. We read those reminders of the trial commissioner as his method for assuring that the claimant’s election to proceed pro se was a decision which the claimant entered into with knowledge of his right to secure representation and one which the claimant may consider anew as litigation proceeded.

The remainder of the claimant’s appeal is best characterized as a wholesale attack on the trial commissioner’s character and his exercise of his discretionary powers. We cannot merely accept the allegations of a party without some offer of proof or citation in law as to errors committed. As our Appellate Court stated in Watkins v. Thomas, 118 Conn. App. 452, 455-56 (2009), “[a]nalysis, rather than mere abstract assertion, is required. . . . Where the parties cite no law and provide no analysis of their claims, we do not review such claims.”

This board does not engage in de novo review. Anderton v. WasteAway, 91 Conn. App. 345 (2005). As this board noted in Connors v. Stamford, 5484 CRB-7-09-7 (July 23, 2010):

The resolution of the issue presented, whether the trial commissioner erred in concluding that the claimant failed to sustain his burden of proof that his lower back injury arose out of and in the course of his employment, is a factual question to be decided by the trial commissioner. See Lettieri v. Tilcon Connecticut, Inc., 5478 CRB-3-09-6 (June 17, 2010), Hernandez v. Pizzaria 101 and Family, 5254 CRB-2-07-7 (December 8, 2008). It is dependent upon the weight and credibility accorded to the evidence by the trial commissioner. Further, such determinations will not be disturbed unless without evidence, contrary to law or based on unreasonable or impermissible factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535 (1988).

In the instant matter the trial commissioner presided over multiple formal hearing sessions and received into evidence numerous documents. Our review of the record below indicates there was ample support in the evidence for his findings and conclusion.6

Finally, we reach the issue of claimant’s Motion to Submit Additional Evidence filed December 8, 2009. Administrative Regulation § 31-301-9 provides that such motions must indicate the materiality and nature of the evidence, and present good reasons for the failure to present the evidence in the proceedings below. The claimant’s motion does not appear to meet the criteria for submitting additional evidence. From what we can discern from claimant’s motion, the claimant appears to be seeking to proffer records which are merely cumulative of evidence put before the trial commissioner.7 Cuadrado v. Stop & Shop Companies, Inc., 5360 CRB-7-08-7 (July 2, 2009).

We therefore affirm the November 24, 2009 Finding and Award/Finding and Dismissal of the Commissioner acting for the Eighth District.

Commissioners Jack R. Goldberg and Peter C. Mlynarczyk concur.

1 The trial commissioner dismissed claims for injuries alleged to the following body parts and on the following dates: May 25, 2007 shoulder injury; June 7, 2007 shoulder injury; June 12, 2007 shoulder injury; July 6, 2007 shoulder injury; July 9, 2007 shoulder injury; August 16, 2007 shoulder injury; September 14, 2007 shoulder injury; October 17, 2007 shoulder injury; December 5, 2007 shoulder injury; December 18, 2007 shoulder injury; January 16, 2008 shoulder injury; February 5, 2008 shoulder injury; February 6, 2008 shoulder injury; and November 5, 2008 speech and throat injury. BACK TO TEXT

2 See Paragraph Z as corrected by the trial commissioner’s December 10, 2009 ruling on the Respondent’s Motion to Correct. BACK TO TEXT

3 Voluntary Agreements were approved for injuries sustained on November 1, 1994, March 20, 2001, and August 15, 2007. BACK TO TEXT

4 Among the documents filed were:

1. a Petition for Review filed November 30, 2009;

2. a Motion To Correct filed December 8, 2009;

3. Claimant’s Motion for the Record and for Direct Review of Claimant Listed Exhibits By The Compensation Review Board (referencing a Motion To Amend All Current 31-308a Order[s] dated June 11, 2009 and Motion to Order dated June 11, 2009;

4. Motion to Appeal Directly to Appellate Court filed December 8, 2009;

5. Claimant’s Motion To Correct filed December 8, 2009;

6. Complain[t]: Demand that Trial Commissioner Be Removed From Cases filed May 7, 2009

7. State of the Appeal filed May 5, 2009 (document undated);

8. Claimant’s Motion Seeking Removal of All Cases With Workers’ Compensation and Department of Labor To The Superior Court filed December 8, 2009;

9. Claimant’s Motion To Add Additional Medical Records filed December 8, 2009;

10. Claimant’s Motion To Compensation Review Board filed December 8, 2009 (seeking to revise transcripts and trial commissioner);

11. Claimant Motion of the Commissioner[’s] Failure To Follow the Law filed December 8, 2009;

12. [Claimant’s] Notification of Temporary Absence, filed December 15, 2009;

13. Claimant’s Brief filed February 23, 2010;

14. Claimant’s Amendment (Correction) to Brief filed March 9, 2010;

15. Claimant’s document entitled “Issues At Hand.” BACK TO TEXT

5 Again, insofar as we understand claimant’s argument on appeal these motions include: (1) Motion To Remove Form 36-January 13, 2009 and May 20, 2009 (Claimant’s Exhibit ZZZ, June 11, 2009), (2) Motion To Contest Form 43 (Claimant’s Exhibit A-4, June 11, 2009), (3) Motion To Contest Respondent’s Exhibit 9 (Claimant’s Exhibit B-4, June 11, 2009), (4) Motion to Address Voluntary Agreement (Claimant’s Exhibit C-4, June 11, 2009), and (5) Motion to Order (Claimant’s Exhibit D-4, June 11, 2009). BACK TO TEXT

6 For example on the issue of total disability we point to Claimant’s Exhibit Q, Report of Dr. Robert Berland dated January 30, 2008 and Claimant’s Exhibit R, Report of Dr. Charles Kime dated February 12, 2008. We also note the trial commissioner’s November 24, 2010 Finding and Award contains 114 findings and 26 conclusions. Claimant’s exhibits were numerous as indicated by the sequential numbering of those exhibits from Claimant’s A thru EEEE (E-4). BACK TO TEXT

7 Claimant’s Motion to Submit Additional Evidence reads in pertinent part as follows:

Claimant Motion to add additional Medical Records:

(a) Additional on-going treatment from Workers Compensation Treating Physical Dr. John Tauro.

(b) Patient [claimant] health had since deteriorate, where-in patient/claimant now requires a wheel-chair, AND where; Patient is showing deterioration in health, due to the long awaited approval for medical treatment for the brain concussion.

(c) The physical Therapy on/ claimant that was on-going for the Neck/ Larynx that was still in the discovery stage and of Commissioner Walker states that no additional needed at the time, until his ruling was completed as it was already tied-into the 1988 Head and Neck/Concussion as it relates to prior treatment in the records. (sic) BACK TO TEXT